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The Development of Native Title: Opening Our Eyes to Shared History Justice Michelle Gordon*

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The Development of Native Title: Opening Our Eyes to Shared History Justice Michelle Gordon* Gordon J addresses the question “What is the relationship between history, facts and law in native title?” in her speech for the 2019 John Toohey Oration held 2 October 2019. Hosted by the UWA Law School and John Toohey Chambers, the John Toohey Oration honours the career and contribution to public life of a distinguished graduate of The University of Western Australia, Toohey J, one of the country’s most eminent jurists. History is “a constantly moving process, with the historian moving within it”.1 Sometimes, we are ill- equipped, or singularly lacking in focus, to learn about, and then recognise, that history.2 Other times, what we once thought were the answers can be, and often are, shaken, displaced, even erased, by new discoveries and new thinking. And the means by which our understanding of history is shaken, displaced and erased are not finite or closed.3 That is no truer than in our learning and understanding of Aboriginal and Torres Strait Islander cultures and connection to land. We are, as Bruce Pascoe wrote in Dark Emu, “at the beginning – not the end – of understanding pre-colonial history”.4 It seems that each month we discover new archaeological information – a midden at Warrnambool in Victoria has been dated at around 60,000–80,000 years, and a cave in South Australia has shown Aboriginal occupation of around 50,000 years, which is much earlier than it was previously thought Aboriginal people had occupied that region.5 Artefacts discovered from a rock shelter in northern Australia have provided evidence of human occupation of northern Australia around 65,000 years ago.6 Of course, Indigenous Australians have long been conscious of the ancient reach of their heritage. In 1986, while archaeologists explored his land in northern Kakadu, Gaagudju elder Big Bill Neidjie contemplated the antiquity of the Dreaming, stating: When that law started? I don’t know how many thousand years. European say 40,000 years, but I reckon myself probably was more because … it is sacred.7 And we are still learning not only of the ancient nature of Indigenous life in Australia, but also what happened over those 60,000–80,000 years of Indigenous life.8 We are learning that: * Justice of the High Court of Australia. This is an edited version of the Toohey Oration 2019 given at the University of Western Australia on 2 October 2019. Thanks to Ella Delany for her assistance and to Timothy Goodwin and Graeme Hill for their comments. Errors and misconceptions remain with the author. 1 EH Carr, What Is History? The George Macaulay Trevelyan Lectures Delivered at the University of Cambridge January – March 1961 (Vintage Books, 1961) 128. 2 B Pascoe, Salt: Selected Stories and Essays (Black Inc, 2019) 14, 33, 36, 57, 59, 62, 79, 107, 195. 3 See, eg, L Behrendt, Finding Eliza: Power and Colonial Storytelling (University of Queensland Press, 2016) 171–178, Ch 8, especially 184, 191. 4 B Pascoe, Dark Emu (Magabala Books, 2014) 60. 5 Pascoe, n 4, 61, citing D Cooper, “Flinders Rangers Rock Shelter”, ABC, 4 November 2016. See also D Cooper, “Oldest Known Evidence of Aboriginal Settlement in Arid Australia Found in Flinders Ranges Rock Shelter”, ABC, 4 November 2016 <https:// www.abc.net.au/news/science/2016-11-03/rock-shelter-shows-early-aboriginal-settlement-in-arid-australia/7983864>. 6 See C Clarkson et al, “Human Occupation of Northern Australia by 65,000 Years Ago” (2017) 547 Nature 306. 7 B Griffiths, Deep Time Dreaming: Uncovering Ancient Australia (Black Inc, 2018) 292, citing B Neidjie, S Davies and A Fox, Kakadu Man … Bill Neidjie (Mybrood, 1986) 48. 8 See, eg, N Isa, “Indigenous History Along the Murray River Being Unearthed in Five-Year Research Project”, ABC, 24 June 2019 <https://www.abc.net.au/news/2019-06-24/indigenous-history-along-murray-river-being-unearthed/11237698>. 314 (2019) 30 PLR 314 Please note that this article is being provided For information concerning permission to for research purposes and is not to be repro- republish material from this journal, either in duced in any way. If you refer to the part or in its entirety, in any medium, please article, please ensure you acknowledge both refer to http://sites.thomsonreuters.com.au/ © 2019 Thomson Reuters (Professional) Australia Limited the publication and publisher appropriately. journals/permissions. for further information visit www.thomsonreuters.com.au The citation for the journal is available in the For general permission queries, contact or send an email to [email protected] footline of each page. [email protected] The Development of Native Title: Opening Our Eyes to Shared History [o]ver millennia, [Australia’s first peoples] explored and colonised every region, transforming the terrain as they moved, making the country their own through language, song and story. They harnessed flame to create new ecosystems, dug the earth to encourage crops, and built water controls to extend the natural range of their resources.9 Across the unfathomably vast period of what John McPhee termed “deep time”,10 Aboriginal Australians established systems of sophisticated housing,11 built dams, cultivated the land,12 and altered the course of rivers.13 Aboriginal Australians created a system of co-operation, which could be considered “jigsaw mutualism”, where: People had rights and responsibilities for particular pieces of the jigsaw, but … were constrained to operate that piece so that it added to rather than detracted from the pieces of their neighbours and epic integrity of the land. The part of the tree or stream or land that a group retained responsibility for bled into country so distant that they may never visit. They had to imagine how the whole picture looked, and they had absolute confidence in the coherence of the accretive construction of their law over thousands of years, and knew that the jigsaw would make sense and their responsibility was to ensure it continued to make sense.14 As Pascoe said, “[w]e should relish the complexity, the depth, the length of the history”.15 This is not to suggest that Aboriginal and Torres Strait Islander cultures were static, or that they froze in time at the point of first European contact, or thereafter. As Toohey J so accurately stated, while many features of Aboriginal life have been altered following European settlement, it is wrong to regard Indigenous cultures as “fixed and immutable”.16 Toohey J’s experience of land claims “was of an ongoing traditional life that was capable of meeting and adapting to the changes inevitable in continued contact with non-Aboriginal cultures”.17 Toohey J would have been the first to acknowledge that the Anglo-Australian legal system has not historically, and does not now, properly or completely give effect to the complexity of Indigenous cultures. For one thing, there are fundamental differences between law as conceived in the various Indigenous communities and the notion of “native title”. As Irene Watson,18 a Tanganekald and Meintangk woman, and the first Indigenous person to graduate from the University of Adelaide with a law degree, explains: We called the land “ruwe”, mother or grandfather, not “Aboriginal title” or “native title.” Native title is a construction of the High Court and it is a very different idea of land from a First Nations perspective. We know ruwe as a relationship in the same way that we are birthed of the mother and are in kinship relationships to the mob or our peoples. First Nations laws in Australia are ancient and at one time everyone knew them; there was no need to write them down. Law lived in the practice of it, in the singing and in the ceremonies. Songs were a constant reminder of the law, an act of reliving and being in law.19 9 Griffiths, n 7, 1. 10 Griffiths, n 7, 2, quoting J McPhee, Annals of the Former World (Farrar, Straus and Giroux, 1998) 90. 11 See Pascoe, n 4, 119. 12 Pascoe, n 2, 34–35. 13 Pascoe, n 4, 183. 14 Pascoe, n 4, 199. 15 Pascoe, n 2, 198. 16 J Toohey, “Aboriginal Customary Law” (Paper presented at the National Law Librarians Conference, 1983) 6. See Behrendt, n 3, 174–175. 17 Toohey, n 16, 6. 18 N Thorpe, “Irene Watson: SA’s First Aboriginal Lawyer Welcomes Young Graduates”, NITV News, 20 May 2016 <https://www. sbs.com.au/nitv/article/2016/05/11/irene-watson-sas-first-aboriginal-lawyer-welcomes-young-graduates>. 19 I Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge, 2015) 31. The High Court has noted this issue: see Fejo (on behalf of Larrakia People) v Northern Territory (1998) 195 CLR 96, 128 [46]; [1998] HCA 58, where the majority stated that “[n]ative title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law”. See also Yarmirr v Northern Territory (2001) 208 CLR 1, 37–38 [11]; [2001] HCA 56, where the majority stated that “[b]ecause native title has its origin in traditional laws and customs, and is neither an institution of the common law nor (2019) 30 PLR 314 315 Gordon And as Paul Behrendt, Eualeyai Elder, explained in relation to land ownership: Ownership [of land] for the white people is something on a piece of paper. We have a different system. You can no more sell our land than sell the sky … Our affinity with the land is like the bonding between a parent and a child.
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